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A Conversation About First Amendment Rights with David L. Hudson Jr.

July 24, 2017

July is a special month for U.S. history because on the 4th of July, 241 years ago, our country declared its independence. Many Americans celebrate our nation’s birthday by gathering with friends and family to attend summer cookouts and watch fireworks. Others travel to the Capitol for even grander Independence Day festivities, filled with elected officials at the White House or at the Lincoln Memorial.

July is also a great month to reflect on the founding ideals of our country, the progress it has made, and how far it still has to go. In the midst of that reflection, some of us might even consider how our citizenship guarantees protections, which may not be accessible or practiced in other countries.

David L. Hudson Jr..

Advocacy and grassroots movements are key ingredients in affecting systemic change, but they are only possible because of the protections granted by the U.S. Constitution. That’s why we sat down with David L. Hudson Jr., First Amendment expert and law professor, to discuss some misconceptions about our First Amendment Rights. Hudson serves as First Amendment ombudsman for the Newseum Institute’s First Amendment Center. He is an author, co-author or co-editor of more than 40 books, including “Let The Students Speak: A History of the Fight for Free Expression in American Schools” (Beacon Press, 2011), and “The Encyclopedia of the First Amendment” (CQ Press, 2008). He has served as a senior law clerk at the Tennessee Supreme Court, and teaches First Amendment and Professional Responsibility classes at Vanderbilt University School of Law and various classes at the Nashville School of Law.

Thank you for agreeing to offer your insight for our readers. Before we get started, can you tell us a little bit about what sparked your interest in The First Amendment and Student Rights?

David L. Hudson Jr. :My initial interest began in high school. I got in trouble for engaging in certain speech and felt the punishment was unfair. Later in life, my interest deepened after I joined the First Amendment Center. I got to speak at different schools and really enjoyed discussing student rights. Eventually, I took it up a notch by becoming personal friends with free speech activists like John and Mary Beth Tinker, and wrote books on the subject.

The First Amendment is often referenced by Americans in both public and private spaces, especially when our “freedoms” are questioned. What are some of the biggest misconceptions about the First Amendment and the rights it grants us?

David L. Hudson Jr. :One misconception is that the First Amendment limits both public and private actors. Under the state action doctrine, the First Amendment limits only public actors. Another misconception is that many people don’t realize that the First Amendment protects a great deal of obnoxious, offensive, or repugnant speech. Justice Brennan once referred to this as a “bedrock principle” of the First Amendment.

AGF NOTE: The protections you receive at a public park are much different from what you may be entitled to during working hours if you work at a private corporation. However, there is a grey area that exists in the law to ensure workers are not being exploited. “Hate speech” is, within reason, protected by the First Amendment. People are entitled to condemn religions, political parties, economic system, etc. The premise is that government should not control speech, whether it agrees or disagrees with what is being said.

Young people are quickly becoming the biggest demographic in our electorate. They are in a position to shape how politics are constructed and how our country will operate in the future. How are conversations about the First Amendment altered when discussing it in the context of students and student organizers?

David L. Hudson Jr. : Student organizers have to be careful—even under the speech-protective standard articulated in the Tinker case—because some courts have held that student walkouts are disruptive to the educational process. However, there is a healthy degree of protection for student political clubs and such. Advocacy should be protected but if it becomes substantially disruptive, then it becomes a problem.

AGF NOTE: The “Tinker case” refers to Tinker v. Des Moines Independent Community School District (1969). In the case, students in an Iowa public school organized a protest against the Vietnam War, where they wore black armbands as a symbol of their opposition to the war. Administrators found out and the Principal threatened to suspend all students who participated. After the protest, students were suspended and parents sued the school for violation of freedom of speech. The U.S District Court sided with the school, ruling the protest disrupted learning. The United States Supreme Court ruled in a 7-2 decision in favor of the students in 1969. The court agreed that students, “don’t shed their constitutional rights at the school house gates.” This has become known as the Tinker standard.

Freedom of speech is one of the most controversial subjects in the current national dialogue. What are some ways in which student organizers have been protected by freedom of speech for their advocacy and ways they have not? Did this play a role for students who joined the Civil Rights Movement of the 1960s?

David L. Hudson Jr. : Students played a very significant role in the Civil Rights Movement. One of my favorite cases is Edwards v. South Carolina (1963). In that case, 187 African-American youth (and one white youth) were arrested for protesting and marching against segregation in Columbia, South Carolina.

“Freedom to petition” is not often discussed. Can you tell us what “freedom to petition” encompasses? How have students exercised it?

David L. Hudson Jr. :It encompasses the right to petition the government for a redress of grievances. In a sense filing a lawsuit is a petition. But, when I think of petition in this context, I think of a list of signed student signatures, peacefully expressing their opposition to a school policy (like an overbroad or onerous dress code).

What are some trends we should be noting in student rights as it pertains to the First Amendment? Are there new issues student organizers are currently battling on and off campus in the 21st century?

David L. Hudson Jr. : A key unanswered question concerns student rights online. Or asked another way — how far does the arm of school authority extend to off-campus, online speech? We still don’t know the answer.

As July comes to a close, we want encourage all of you to think about your advocacy and activism. In what ways are you an advocate and what causes do you champion with your everyday decisions? Whether you are currently a student or working professionally, consider the different protections and rights you’re entitled to, depending on the context. Think about your ability to advocate for yourself and for others as a sacred component of your ability to move our country forward.

About the Author

Kevin Hurtado is the Communications and Development Associate at Andrew Goodman Foundation. He graduated from Ramapo College of New Jersey with a Bachelor’s in International Studies and a minor in Human Rights and Genocide. Previously, Kevin worked as an Executive Assistant and Officer Manager at Newark Charter School Fund, a nonprofit dedicated to promoting educational equity in the city of Newark.